s.78 — Application based on previous order, mediated settlement

78 (1) A landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy or evicting the tenant if the following criteria are satisfied: 1. The landlord previously applied to the Board for an order terminating the tenancy or evicting the tenant. 2. A settlement agreed to under section 194 or order made with respect to the previous application, i. imposed conditions on the tenant that, if not met by the tenant, would give rise to the same grounds for terminating the tenancy as were claimed in the previous application, and ii. provided that the landlord could apply under this section if the tenant did not meet one or more of the conditions described in subparagraph i. 3. The tenant has not met one or more of the conditions described in subparagraph 2 i.  ; (2) The landlord shall include with the application a copy of the settlement or order and an affidavit setting out what conditions of the settlement or order have not been met and how they have not been met. (3) In an application under subsection (1), the landlord may also request that the Board make an order for payment under subsection (7) if the following criteria are satisfied: 1. The landlord applied for an order for the payment of arrears of rent or compensation for the repair or replacement of damaged property when the landlord made the previous application described in paragraph 1 of subsection (1). 2. A settlement agreed to under section 194 or order made with respect to the previous application requires the tenant to pay rent or some or all of the arrears of rent or compensation for the repair or replacement of damaged property.  ; ; (4) If the landlord makes a request under subsection (3), the affidavit included with the application under subsection (2) must also provide the following information: 1. If the settlement or order requires the tenant to pay some or all of the arrears of rent, the amount of any additional arrears of rent arising after the date of the settlement or order. 2. The amount of NSF cheque charges, if any, claimed by the landlord that were charged by financial institutions after the date of the settlement or order in respect of cheques tendered to the landlord by or on behalf of the tenant, to the extent the landlord has not been reimbursed for the charges. 3. The amount of NSF administration charges, if any, claimed by the landlord in respect of NSF cheques tendered by or on behalf of the tenant after the date of the settlement or order, to the extent the landlord has not been reimbursed for the charges. 4. If a settlement was agreed to under section 194 with respect to the previous application, i. the amount of compensation for damage payable to the landlord under the terms of the settlement, ii. the amount of arrears of rent payable to the landlord under the terms of the settlement, iii. the amount of NSF cheque charges payable to the landlord under the terms of the settlement, iv. the amount of NSF administration charges payable to the landlord under the terms of the settlement, and v. the amount that the terms of the settlement required the tenant to pay to the landlord as reimbursement for the fee paid by the landlord for the application referred to in paragraph 1 of subsection (1). 5. The amount of any rent deposit, the date it was given and the last period for which interest was paid on the rent deposit. 6. The amount and date of each payment made under the terms of the settlement or order and what the payment was for. ; ; (5) An application under this section shall not be made later than 30 days after a failure of the tenant to meet a condition described in subparagraph 2 i of subsection (1). (6) If the Board finds that the landlord is entitled to an order under subsection (1), the Board may make an order terminating the tenancy and evicting the tenant. (7) If an order is made under subsection (6) and the landlord makes a request under subsection (3), the Board may order the payment of the following amounts: 1. The amount of any compensation payable under section 86. 2. If the settlement or order referred to in paragraph 2 of subsection (3) requires the tenant to pay some or all of the arrears of rent, the amount of arrears of rent that arose after the date of the settlement or order. 3. Such amount as the Board may allow in respect of NSF cheque charges claimed by the landlord that were charged by financial institutions, after the date of the settlement or order referred to in paragraph 2 of subsection (3), in respect of cheques tendered by or on behalf of the tenant and for which the landlord has not been reimbursed. 4. Such amount as the Board may allow in respect of NSF administration charges claimed by the landlord that were incurred after the date of the settlement or order referred to in paragraph 2 of subsection (3) in respect of NSF cheques tendered by or on behalf of the tenant and for which the landlord has not been reimbursed, not exceeding the amount per cheque that is prescribed as a specified amount exempt from the operation of section 134. 5. If a settlement was agreed to under section 194 with respect to the previous application, i. the amount of arrears of rent payable under the terms of the settlement that has not been paid, i.1 the amount of compensation for damage payable under the terms of the settlement that has not been paid, ii. the amount payable under the terms of the settlement in respect of NSF cheque charges that were charged by financial institutions in respect of cheques tendered by or on behalf of the tenant and for which the landlord has not been reimbursed, iii. the amount payable under the terms of the settlement in respect of NSF administration charges for which the landlord has not been reimbursed, not exceeding the amount per cheque that is prescribed as a specified amount exempt from the operation of section 134, and iv. the amount payable under the terms of the settlement as reimbursement for the fee paid by the landlord for the previous application, to the extent that the amount payable did not exceed that fee and to the extent that the amount payable has not been paid.  ; ; (7.1) If the Board makes an order under subsection (6), the Board may, (a) cancel a previous order referred to in paragraph 2 of subsection (3); and (b) order the payment of any amount payable under the cancelled order that has not been paid. (8) In determining the amount payable by the tenant to the landlord, the Board shall ensure that the tenant is credited with the amount of any rent deposit and interest on the deposit that would be owing to the tenant on the termination of the tenancy. (9) The respondent may make a motion to the Board, on notice to the applicant, to have an order under subsection (6), and any order made under subsection (7) or (7.1), set aside within 10 days after the order made under subsection (6) is issued.  ; (10) When a motion under subsection (9) is received by the Board, an order under subsection (6), and any order made under subsection (7) or (7.1), are stayed and shall not be enforced under this Act or as an order of the Superior Court of Justice during the stay. (11) If the respondent makes a motion under subsection (9), the Board shall, after a hearing, (a) make an order setting aside the order under subsection (6), and any order made under subsection (7) or (7.1), if any of the criteria set out in subsection (1) are not satisfied; (b) make an order setting aside the order under subsection (6), and any order made under subsection (7) or (7.1), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order under subsection (6); or (c) make an order lifting the stay of the order under subsection (6), and any order made under subsection (7) or (7.1), effective immediately or on a future date specified in the order.  ; (12) In an order under clause (11) (b), the Board may amend a settlement agreed to under section 194 or an order made with respect to the previous application if it considers it appropriate to do so.  ; (13) This section, as it reads immediately before the day subsection 16 (11) of the Rental Fairness Act, 2017 comes into force, continues to apply if the previous application referred to in paragraph 1 of subsection (1) is made before that day, regardless of whether the resulting settlement or order is mediated or made before, on or after that day.